Modern legal originalism evolved dramatically over the four decades of its renewed life in public debate. The speed of that evolution sometimes leaves proponents as well as opponents gasping for breath. Yet the evolution of originalism from Edwin Meese’s “original intentions” to Antonin Scalia’s “textualism” can imply different, even diametrically opposite, answers to the same legal questions.
While both can legitimately claim to be “originalism,” intentionalism and textualism forward mutually exclusive interpretive methodologies. As Scalia wrote in his 1997 book, A Matter of Interpretation: Federal Courts and the Law, “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”
One does not need to look far to examples of the different outcomes implied by the two species of originalism. For example, in answering the question in The Slaughterhouse Cases whether the Fourteenth Amendment’s Privileges and Immunities clause applies to white butchers in Louisiana, Justice Miller, framed the majority argument for denying the butchers the Amendment’s protection by appealing to original intentions for the Amendment:
The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history…. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.
We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. . . . [I]n any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished as far as constitutional law can accomplish it.
In their dissents, Justices Swayne and Bradley both objected to the intimation in Miller’s argument that intentions trump a fair reading of text. Swayne wrote,
The language employed [by the Fourteenth Amendment] is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language “citizens of the United States” was meant all such citizens; and by “any person” was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes, and conditions of men.
It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed.
I want to use this distinction in forms of originalism to refine Paul Moreno’s passing comment on originalism in his fine book review of Justice Jackson’s unpublished opinion in Brown v. Board of Education. There he observed, “it is clear on originalist grounds that the Fourteenth Amendment was not intended to prohibit segregated public schools (or racial intermarriage)” needs to be refined by whether originalism is understood as intentions or text.
The observation is certainly correct with respect to originalism as intentionalism, or originalism understood as expected application (in Jack Balkin’s phrase) of the drafters. The evidence is mainly circumstantial, nonetheless compelling. The issue did not arise directly in congressional debate on the Amendment. Nonetheless, indirect evidence about Congress’ intent in drafting the Amendment seems strong.
For example, in his speeches of June 5 and 6, 1866 on the then-proposed Fourteenth Amendment, Senator Howe of Wisconsin, a strong supporter of the Amendment, noted the recent provision by Florida for the education of the state’s black children. In arguing that Florida’s policy response was a “crime,” however, Howe did not even note in passing that Florida established a racially segregated school system. He objected, rather, that the state required both whites and blacks to pay taxes to support schools for white children, while it imposed taxes to pay for schools for black children on blacks alone.
If as strong a supporter of the Fourteenth Amendment as Howe did not suggest the Amendment would forbid segregated schools, it is almost certainly true hardly anyone else thought at the time that the Amendment required integration.
Yet Howe’s (and other’s) thoughts, intentions or expectations are irrelevant for textualists originalists. Scalia’s comment about statutory history applies equally to constitutional history: “The statute is what Congress voted on, not what some committee member said he thought it meant. I don’t care what he thought it meant, since the rest of the Congress didn’t know what he thought it meant when they voted for the law.” Textualism distinguishes between original expected application of a provision with its original meaning.
When originalism is understood as textualism rather than intent, it’s no stretch for originalists fairly to read the Fourteenth Amendment to forbid racially segregated schools. Indeed, it fairly falls out of the text – a case of its authors writing better than they knew. And the implication need not rest on the Equal Protection clause alone. Fair readings of the liberty guarantee of the Due Process Clause (per the Supreme Court’s Fifth Amendment Due Process decision in Bolling v. Sharpe, which is not quite the reverse incorporation decision it is often styled to be, but that for another column) and the Privileges or Immunities clause would seem to provide reasonable textualist bases for striking down racially segregated government schools.
Indeed, the irony is that an originalist qua textualist reading of the Fourteenth Amendment can provide a firmer foundation for the outcome in Brown v. Board of Education than the Court did in its actual opinion in the case.